CLA-2-90 :OT:RR:NC:N4:405
James Burritt
Panalpina, Inc.
1425 Corporate Center Drive, Suite 900
San Diego, CA 92154
RE: The tariff classification of a respiratory device kit from Australia.
Dear Mr. Burritt:
In your letter dated May 1, 2009, you requested a tariff classification ruling on behalf of ResMed, Corp. A sample was provided.
Per your letter, and the sample provided, you are interested in obtaining the classification of the S8 Escape CPAP Respiratory Device Kit. CPAP is an acronym for Continuous Positive Airway Pressure. You state that the chief function of the S8 Escape “is that of a flow generator that pulls air through a filter provides a set air pressure through a mask system to the patient.” The mask, which you state is sold separately (and was not included with the sample), is designed to seal over the patient’s face to deliver the treatment pressure to the upper airway. In addition to the flow generator, the S8 kit also includes a humidifier (which moistens the delivered air) and six feet of flexible air tubing. The S8 Escape also comes with a specially designed carrying case. You state that the S8 Escape Package is designed and marketed for the treatment of sleep-disordered breathing afflictions, such as sleep apnea. Per the descriptive literature included with your submission, the S8 Escape’s flow generator and humidifier are attached to one another, and one end of the flexible air tubing is attached to the combined unit. The other end of the air tubing will lead to a face mask. The mask will be worn by a patient while they are asleep, and the flow generator will blow pressurized air into the mask, which in turn will keep the patient’s airway open during their slumber. The humidifier moistens the delivered air to limit nasal irritation and dryness caused by the constant air flow. In a phone conversation, you stated that the abovementioned components, including the carrying case are imported together and sold as a set, and thus should be classified together. Despite this fact, you stated that carrying case may be imported separately, and thus requested a classification for the carrying case by itself, to be used in that event.
The carrying case is similar to a briefcase. It is constructed with an outer surface of man-made textile material. The case is designed to provide storage, protection, portability to respiratory devices. The case has a padded main compartment with hook-and loop strips to hold the devices in place. It has a zipper closure along three sides and an adjustable removable shoulder strap. The top of the case has a carrying handle. The front exterior of the case has a zippered pocket that is meant to hold the breathing tubes and power cords for the devices. The exterior has an additional flap pocket with a hook-and-loop closure that is meant to hold user manuals. The carrying case measures approximately 15” (W) x 12” (H) x 5” (D). The applicable subheading for the S8 Escape CPAP Respiratory Kit (including the carrying case when imported together) will be 9019.20.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for Ozone therapy, oxygen therapy, aerosol therapy, artificial respiration or other therapeutic respiration apparatus and parts and accessories thereof. The rate of duty will be free.
The applicable subheading for the carrying case, when imported on its own, will be 4202.12.8030, HTSUS, which provides for attaché cases, briefcases, school satchels, occupational luggage cases and similar containers, with outer surface of textile materials, other of man-made fibers. The duty rate will be 17.6% ad valorem.
In your ruling request, you suggest a secondary classification in HTSUS 9817.00.96 for the S8 Escape CPAP Respiratory Kit. Sub-heading 9817.00.96 allows for duty free treatment of articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons, and parts and accessories that are specially designed or adapted for use in the foregoing articles. U.S. Note 4(a), Chapter 98, HTSUS, states that the term "blind or other physically or mentally handicapped persons" includes any person suffering from a permanent or chronic physical or mental impairment which substantially limits one or more major life activities, such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, or working. You state in your submission that the U.S. National Institutes of Health has found Sleep Apnea to be a breathing disorder that can be life threatening and for which there is no cure.
On that basis a secondary classification will apply in HTSUS 9817.00.96 for the kit as specially designed or adapted for the use or benefit of the permanently or chronically physically or mentally handicapped if all applicable entry requirements are met, including the filing with the Customs port of entry of the U.S. Department of Commerce form ITA-362P. This merchandise is already duty free, but if you elect to claim the secondary classification in Chapter 98 of 9817.00.96 and meet the entry requirements, no merchandise processing fee will apply to those importations even if they are not eligible for preferential treatment under the U.S.-Australia Free Trade Agreement, noting, e.g., Headquarters Ruling Letter 229110 IDL, 8-29-02. Note that this classification has no effect on any quota, visa, or restricted merchandise requirements.
In the event that the carrying cases are imported on their own, you have suggested that 9817.00.96 be used as a secondary classification as well. As has been noted above, the carrying cases have specially sized pockets and pouches where the components of the S8 Escape are to be stored. They are specially padded and have hook and loop strips designed to hold the unit securely. They also have the Resmed logo emblazoned on the interior of the bag. It is highly unlikely that this bag would be used for any reason other than transporting the S8 Escape Respiratory device.
On that basis a secondary classification will apply for the carrying case by itself in HTS 9817.00.96, as specially designed or adapted for the use or benefit of the permanently or chronically physically or mentally handicapped, free of duty and user fees (if any), if all applicable entry requirements are met including the filing with the Customs port of entry of the U.S. Department of Commerce form ITA-362P. Note that this classification has no effect on any quota, visa, or restricted merchandise requirements.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions concerning the classification of the carrying case by itself, contact National Import Specialist Vikki Lazaro at (646) 733-3044. If you have any other questions regarding the ruling, contact National Import Specialist J. Sheridan at (646) 733-3012.
Sincerely,
Robert B. Swierupski
Director
National Commodity Specialist Division